Should Employment Based Immigrants Settle for the Status Quo?

The CATO Institute predicts an endless wait due to a backlog for Indian immigrants with advanced degrees. The employment-based immigration system appears to be broken. Recently, the USCIS declared in its February 22nd Policy Memo that IT Consulting Companies and their use of third party arrangements may be a “legitimate and frequently used business model” and yet we see daily an increasing number of RFEs on this very issue. The Service continues to question the validity of employment contracts and rejects the concept of short term POs. It finds newer ways[1] of invalidating previously issued H-1Bs by limiting validity periods to six months, or less.

For instance, consular posts have had something called the “Interview Waiver Program” (IWP) where at certain high-volume posts (read India/China), applicants were allowed to use a “dropbox” feature for visa renewal in the same classification – no in person interviews required; this was because these applicants had already been through a thorough vetting when they first obtained a visa and were in most instances, currently living and working in the United States. This was especially true in the case of H-1B nonimmigrants scheduling the renewal of their visa while on vacation. With one stroke of his pen, this President invalidated this pragmatic program. In addition, “administrative processing” – code for “the blackhole”[2], has increased processing times at posts to six months and in the odd instance, to almost a year.

The noise around invalidating the H-4 EAD has sent H-1B spouses (most of them from India) into a permanent state of anxiety. This year, our Office filed a record number of H-1B CAP subject change of status petitions for H-4 spouses. On May 29th, the USCIS proposed a rule to end the International Entrepreneur program removing another Obama era program that temporarily allowed foreign entrepreneurs to be considered for parole to enter the United States for the purpose of setting up and developing startup businesses.

When administration officials rage against undocumented immigrants, one may be tricked into thinking that they have nothing against legal immigration and immigrants. That their angst against DACA stops there and legal immigrants would in their turn be protected. Far from it. Instead, it appears this administration is not simply against undocumented immigration, it is against all immigrants and immigration. Not recognizing this fact could lull one into remaining silent, or for that matter advocating for a “skills-based immigration policy”[3]. Think again. The Service has invalidated entire job titles from being considered specialty occupations in the H-1B context. For instance, Programmer Analysts and Systems Analysts are no longer considered specialty occupations. The administration is also considering a policy change that would redefine “specialty occupation”. So, what stops them from doing the same to a “skills list”? In fact, a skills list does exist – for TN professionals; however, recently the Service issued a policy memo refining the requirements for an Economist within the TN professions. This revision is a restrictive interpretation of who qualifies as an “Economist” under NAFTA. The Service can arbitrarily eliminate a whole host of occupations from the skills list through such policy memos, or simply choose an interpretation that would make it difficult for evolving occupations (Business Intelligence Analysts, Software Quality Assurance Analysts, Big Data Analyst, AI Engineers, etc.) from qualifying for immigration benefits.

So, while a High Skilled Worker program may look enticing, one must view it against the backdrop of an administration not entirely at peace with legal immigration and wholly opposed to any form of legalization for the thousands of undocumented immigrants currently living in the country. Bills currently in Congress like the I-Squared bill (sponsored by Senators Orrin Hatch and Jeff Flake) attempt to balance the H-1B and Employment Based Green Card programs against the rights of U.S. workers and may be a reasonable way to proceed.

However, giving in to cheap machinations and the temptation that this administration views legal immigrants differently to get a “deal” would amount to playing into the hands of those that have embarked on a concerted effort to undermine the immigrant underpinnings of this country. Now, more than ever, immigrants have to stand together in resisting the administration’s concerted efforts to change the very essence of this country as a Nation of Immigrants.

[1] Recently, we were notified of an H-1B approval on an extension where the validity period started and ended on the same day because the USCIS used the contract period to limit validity. The petition had been pending for over 4 months and the underlying contract had since been renewed. However, the Service chose to limit validity without issuing an RFE

[2] A recent search dated 05/24/2018 shows the link for “administrative processing” on the DOS website for the U.S. Embassy and Consulates in India broken a 404 error message stating: “Sorry, we couldn’t find that page on travel.state.gov”

[3] Based on the Administration’s stance outlined in section 5(b) of Executive Order 13788, Buy American and Hire American on allocating H-1Bs only to the “most skilled and highest paid” immigrants